Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into on April 30, 2003, by and among INTERNET COMMERCE CORPORATION, a
Delaware corporation (the "Company"), and the Persons listed on Schedule A
annexed hereto that execute and deliver this Agreement.
WHEREAS, the Stockholders are purchasing from the Company shares of
the Company's Series D Convertible Redeemable Preferred Stock, par value $0.01
per share (the "Series D Preferred Stock"), and Warrants (as hereinafter
defined) pursuant to a subscription agreement dated of even date herewith (the
"Subscription Agreement");
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the parties hereto, intending
legally to be bound, hereby agree as follows.
Section 1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Agreement" shall have the meaning set forth in the preamble hereof.
"Affiliate" of any Person means any other Person who either,
directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. For purposes of this definition, the term "control"
(including the terms "controlling" "controlled by" and under "common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Business Day" shall mean any day which is not a Saturday or Sunday
or legal holiday on which banks are authorized or required to be closed in New
York, New York.
"Capital Stock" shall mean all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Common Stock" shall mean the Class A Common Stock, par value $0.01
per share, of the Company.
"Current Market Value" shall mean the average closing price on The
Nasdaq SmallCap Market of the Company's Common Stock for the ten (10)
consecutive trading days ending one (1) day prior to the date of any
calculation; provided, however, that if there are no trades on any such trading
day, the closing price shall be the average of the closing bid and asked prices
for such day; provided, further, however, that if the Common Stock is not then
listed on The Nasdaq SmallCap Market, the Current Market Value shall mean the
average closing price either of the principal stock exchange on which the Common
Stock is listed, or of the quotation system, operated by a national securities
association, on which the Common Stock is quoted, for the ten (10) consecutive
trading days ending one (1) day prior to the date of any calculation;
however, if there are no trades on any such trading day, the closing price shall
be the average of the closing bid and asked prices for such day.
"Delay Notice" shall have the meaning set forth in Section 6(b)
hereof.
"Encumbrance" means any lien, pledge, mortgage, security interest,
charge, restriction, adverse claim or other encumbrance of any kind or nature
whatsoever.
"Hold-Back Election" shall have the meaning set forth in Section
6(a) hereof.
"Indemnifiable Costs and Expenses" shall have the meaning set forth
in Section 8(a) hereof.
"Material Development Condition" shall have the meaning set forth in
Section 6(b) hereof.
"Other Holders" shall have the meaning set forth in Section 3(c)
hereof.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization or a
government or agency or political subdivision thereof or any other similar
entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by a prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities covered
by such Registration Statement and by all other amendments and supplements to
the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.
"Registrable Securities" shall mean the shares of Common Stock
issuable upon conversion of the Series D Preferred Stock and upon the exercise
of the Warrants purchased by the Stockholders from the Company pursuant to the
Subscription Agreement and any other securities issued or issuable as a result
of or in connection with any stock dividend, stock split or reverse stock split,
combination, recapitalization, reclassification, merger or consolidation,
exchange or distribution or otherwise in respect of such Common Stock.
"Registration Expenses" shall have the definition set forth in
Section 7 hereof.
"Registration Statement" shall mean any registration statement which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
"Requesting Securityholder" shall have the meaning set forth in
Section 4 hereof.
"Restricted Securities" shall have the meaning set forth in Section
2 hereof.
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"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 903" shall mean Rule 903 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 904" shall mean Rule 904 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"SEC" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Securities Act" shall mean the Securities Act of 1933, as amended
(or any similar successor federal statute), and the rules and regulations
thereunder, as the same are in effect from time to time.
"Selling Stockholder" shall mean any Stockholder whose Registrable
Securities are included in a Registration Statement.
"Series D Preferred Stock" shall have the definition set forth in
the recitals to this Agreement.
"Shelf Registration" shall have the meaning set forth in Section
3(a) hereof.
"Shelf Registration Period" shall have the meaning set forth in
Section 3(b) hereof.
"Stockholders" shall mean the Persons listed on Schedule A annexed
hereto that execute and deliver this Agreement and any Person to whom the rights
under this Agreement are assigned pursuant to Section 17 hereof.
"Subscription Agreement" shall have the definition set forth in the
recitals to this Agreement.
"Underwritten Offering" shall mean a registered offering in which
securities of the Company are sold to an underwriter pursuant to a firm
commitment underwriting agreement for reoffering to the public.
"Warrants" shall mean the five year warrants to purchase Common
Stock issued to the Stockholders pursuant to the Subscription Agreement.
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Section 2. Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement are the Registrable Securities but,
with respect to any particular Registrable Security, only so long as such
security continues to be a Restricted Security. A Registrable Security that has
ceased to be a Registrable Security cannot thereafter become a Registrable
Security. As used herein, a "Restricted Security" is a Registrable Security
which has not been effectively registered under the Securities Act and
distributed in accordance with an effective Registration Statement and which has
not been distributed by a Stockholder pursuant to Rule 144, Rule 903 or Rule
904, unless, in the case of a Registrable Security distributed pursuant to Rule
903 or 904, any applicable restricted period has not expired or the SEC or its
staff has taken the position in a published release, ruling or no-action letter
that securities distributed under Rule 903 or 904 are ineligible for resale in
the United States under Section 4(1) of the Securities Act notwithstanding
expiration of the applicable restricted period.
Section 3. Shelf Registration.
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(a) Filing. Subject to the provisions of Section 6(b) hereof, the
Company shall use its commercially reasonable efforts to file, as expeditiously
as possible, but in any event no later than seventy five (75) days after the
date hereof, a Registration Statement on Form S-3 (or any successor form)
covering all Registrable Securities (the "Shelf Registration").
(b) Effectiveness of Registration Statement. Subject to the
provisions of Section 6(b) hereof, the Company shall use its commercially
reasonable efforts to (i) cause the Registration Statement relating to the Shelf
Registration to become effective as promptly as practicable, and (ii) thereafter
keep such Registration Statement effective continuously for the period (the
"Shelf Registration Period") ending on the earlier of (A) two (2) years from the
closing under the Subscription Agreement and (B) the date on which all
Registrable Securities covered by such Registration Statement have been sold and
the distribution contemplated thereby has been completed.
(c) Inclusion of Other Securities. The Company and any other holder
of the Company's securities who has registration rights ("Other Holders") may
include its securities in the Shelf Registration effected pursuant to this
Section 3.
Section 4. Piggyback Registrations. If the Company at any time
proposes to file a registration statement with respect to its Common Stock,
whether for its own account or for the account of any Other Holder or Other
Holders that have requested such registration (a "Requesting Securityholder"),
other than a registration statement or Form S-4 or S-8 (or any successor or
substantially similar form) and other than in connection with on employee
compensation plan, or securities issued pursuant to any such plan, or a dividend
reinvestment plan, then the Company shall in each case give written notice of
such proposed filing to the Stockholders at least twenty (20) days before the
anticipated filing date of any such Registration Statement by the Company, and
such notice shall offer to the Stockholders the opportunity to have any or all
of the Registrable Securities held by the Stockholders included in such
Registration Statement. If any Stockholder desires to have its Registrable
Securities registered under this Section 4, it shall so advise the Company in
writing within ten (10) days after the date of receipt of such notice (which
request shall set forth the amount of Registrable Securities for which
registration is requested), and the Company shall use its commercially
reasonable efforts
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to include in such Registration Statement all such Registrable Securities so
requested to be included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of any such proposed public offering advises the
Company that the total amount of Common Stock which the Stockholders, the
Company and any other Persons intended to be included in such proposed public
offering is sufficiently large to adversely affect the success of such proposed
public offering, then the number of shares of Common Stock to be offered for the
accounts of the Stockholders and the Other Holders shall be reduced pro rata,
based upon the aggregate number of securities to be offered for the accounts of
the Stockholders and all Other Holders (except the Company and the Requesting
Securityholder) intended to be included in such offering, to the extent
necessary to reduce the total number of securities to be included in such
proposed public offering to the number recommended by such managing underwriter
or underwriters before the securities offered by the Company or any Requesting
Securityholder are so reduced. Anything to the contrary in this Agreement
notwithstanding, the Company may withdraw or postpone a Registration Statement
referred to in this Section 4 at any time before it becomes effective or
withdraw, postpone or terminate the offering after it becomes effective without
any liability or obligation to any Stockholder.
Section 5. Registration Procedures.
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(a) General. In connection with the Company's registration
obligations pursuant to Sections 3 and 4 hereof, the Company will:
(i) prepare and file with the SEC a new Registration Statement
or such amendments and post-effective amendments to an existing
Registration Statement as may be necessary to keep such Registration
Statement effective for the time periods set forth in Section 3(b) hereof;
provided that no Registration Statement shall be required to remain in
effect after all Registrable Securities covered by such Registration
Statement have been sold and distributed as contemplated by such
Registration Statement, and, provided, further, that as soon as
practicable, but in no event later than three (3) Business Days before
filing such Registration Statement, the Company shall furnish to the
Selling Stockholder(s) copies of all such documents proposed to be filed,
which documents shall be subject to the review of the Selling
Stockholders;
(ii) notify the Selling Stockholder(s) promptly (1) when a new
Registration Statement, Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any new
Registration Statement or post-effective amendment, when it has become
effective, (2) of any request by the SEC for amendments or supplements to
any Registration Statement or Prospectus or for additional information,
(3) of the issuance by the SEC of any comments with respect to any filing
(and to reply thereto as promptly as reasonably practicable), (4) of any
stop order suspending the effectiveness of any Registration Statement or
the initiation of any proceedings for that purpose (and use commercially
reasonable efforts to obtain the withdrawal of such order), (5) of any
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and (6) if there is any misstatement or omission of any
material fact in any Registration Statement, Prospectus or any document
incorporated therein by reference or if any event occurs which requires
the making of any changes in any Registration
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Statement, Prospectus or any document incorporated therein by reference in
order to make the statements therein (in the case of any Prospectus, in
the light of the circumstances under which they were made) not misleading;
(iii) if reasonably requested by a Selling Stockholder,
promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Selling Stockholder and
its proposed plan of distribution as such Selling Stockholder reasonably
requests be included therein; and promptly make all required filings of
such Prospectus supplement or post-effective amendment;
(iv) furnish to each Selling Stockholder, without charge, as
many conformed copies as may reasonably be requested of the then effective
Registration Statement and any post-effective amendments thereto,
including financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including those incorporated by
reference);
(v) deliver to each Selling Stockholder, without charge, as
many copies as may reasonably be requested of the then effective
Prospectus (including each prospectus subject to completion) and any
amendments or supplements thereto;
(vi) use commercially reasonable efforts to register or
qualify or cooperate with the Selling Stockholder(s) in connection with
the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as
such Selling Stockholder(s) reasonably requests in writing; provided,
however, that the Company will not be required to (1) qualify to do
business in any jurisdiction where it would not otherwise be required to
qualify, but for this paragraph (vi), (2) subject itself to general
taxation in any such jurisdiction or (3) file a general consent to service
of process in any such jurisdiction;
(vii) cooperate with the Selling Stockholder(s) to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least
two (2) Business Days prior to any sale of Registrable Securities to the
underwriters;
(viii) otherwise use its commercially reasonable efforts to
comply in all material respects with all applicable rules and regulations
of the SEC relating to such registration and the distribution of the
securities being offered and make generally available to its securities
holders an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act;
(ix) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.; and
(x) upon reasonable notice and during normal business hours,
provide reasonable access to the Company's personnel and auditors for the
purpose of permitting the Selling Stockholders to conduct due diligence in
connection with any such Registration Statement.
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As a condition precedent to the participation in any registration
hereunder, the Company may require the Selling Stockholders to furnish to the
Company such information regarding such Stockholders and the distribution of
such securities as the Company may from time to time reasonably request to
comply with the applicable provisions of the Securities Act.
(b) Cessation of Sales. Each Selling Stockholder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(a)(ii) hereof, such Selling Stockholder will forthwith
discontinue disposition of Registrable Securities pursuant to the then current
Prospectus until (1) such Selling Stockholder is advised in writing by the
Company that a new Registration Statement covering the offer of Registrable
Securities has become effective under the Securities Act or (2) such Selling
Stockholder receives copies of any required supplemented or amended Prospectus,
or until such Selling Stockholder is advised in writing by the Company that the
use of the Prospectus may be resumed; provided, however, that the Company shall
use its commercially reasonable efforts to cure any such misstatement, omission
or event that is applicable to the Registration Statement as soon as reasonably
practicable after delivery of such notice pursuant to clause (6) of Section
5(a)(ii) hereof. If so directed by the Company, on the happening of such event,
each Selling Stockholder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Stockholder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
Section 6. Holdback.
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(a) Hold-Back Election. In the case of the registration of any
underwritten primary offering initiated by the Company, each Stockholder agrees
that if it is reasonably requested to do so by the managing underwriter or the
underwriters for such offering, then such Stockholder shall not effect any
public sale or distribution of Capital Stock of the Company, except as part of
such underwritten registration, during the period beginning ten (10) days prior
to the closing date of such underwritten offering and ending ninety (90) days
after such closing date.
(b) Material Development Condition. With respect to any Registration
Statement filed or to be filed pursuant to Section 3 hereof, if the Board of
Directors of the Company determines that, in its good faith judgment, it would
(because of the existence of, or in reasonable anticipation of, any acquisition
or corporate reorganization or other transaction, financing activity, stock
repurchase or other development involving the Company or any subsidiary, or the
unavailability for reasons beyond the Company's control of any required
financial statements, or any other event or condition of similar significance to
the Company or any subsidiary) be impracticable or seriously detrimental (a
"Material Development Condition") to the Company or any subsidiary to file such
Registration Statement with the SEC, or to amend or supplement a Registration
Statement that has been filed with the SEC, then the Company shall,
notwithstanding any other provisions of this Agreement, be entitled, upon the
giving to the Stockholders of a certificate signed by an executive officer of
the Company stating that in the good faith judgment of the Board of Directors
that a Material Development Condition has occurred (a "Delay Notice"), (i) to
cause sales of Registrable Securities by the Selling Stockholders pursuant to
such Registration Statement to cease, (ii) to cause such Registration Statement
to be withdrawn and the effectiveness of such Registration Statement terminated,
or
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(iii) in the event no such Registration Statement has yet been filed or declared
effective, to delay the filing or acceleration of effectiveness of any such
Registration Statement until, in the good faith judgment of the Board of
Directors, such Material Development Condition no longer exists (notice of which
the Company shall promptly deliver to the Selling Stockholders). Notwithstanding
the foregoing provisions of this Section 6(b): (1) in no event may such
cessation or delay be, for each such Registration Statement, for a period of
more than ninety (90) consecutive days from the giving of its Delay Notice to
the Stockholders with respect to such Material Development Condition, as above
provided; and (2) in the event a Registration Statement is filed and
subsequently withdrawn by reason of any existing or anticipated Material
Development Condition as provided above, the Company shall cause a new
Registration Statement covering the Registrable Securities to be filed with the
SEC as soon as practicable after such Material Development Condition ceases to
exist or, if sooner, as soon as practicable after the expiration of such ninety
(90) day period.
(c) Limitation on Registration Rights. Anything to the contrary
contained in this Agreement notwithstanding, when in the opinion of counsel for
the Company registration of all Registrable Securities owned by a Stockholder is
not required by the Securities Act and other applicable securities laws in
connection with a proposed sale of such Registrable Securities, such Stockholder
shall have no rights pursuant to Section 4 hereof to request Registrable
Securities be included in a Registration Statement in connection with such
proposed sale and the Company shall promptly provide to the transfer agent and
such Stockholder's broker in connection with any sale transaction a written
opinion addressed to such Stockholder and the transfer agent to the effect set
forth above, reasonably sufficient in form and substance to permit the transfer
agent to issue stock certificates for such Registrable Securities without any
legend restricting transfer thereof.
Section 7. Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications or registrations (or the
obtaining of exemptions therefrom) of the Registrable Securities), printing
expenses (including expenses of printing Prospectuses), messenger and delivery
expenses, fees and disbursements of the Company's counsel and its independent
certified public accountants, Securities Act liability insurance (if the Company
elects to obtain such insurance), fees and expenses of any special experts
retained by the Company in connection with any registration hereunder and fees
and expenses of other Persons retained by the Company (all such expenses being
referred to as "Registration Expenses"), shall be borne by the Company;
provided, that Registration Expenses shall not include any fees and expenses of
counsel for the Stockholders, out-of-pocket expenses incurred by the Selling
Stockholders and underwriting discounts, commissions, brokerage or other fees
attributable to the sale of the Registrable Securities.
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Section 8. Indemnification.
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(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, but without duplication,
each Selling Stockholder and its officers, directors, stockholders, employees,
advisors and agents, and each Person who controls a Selling Stockholder (within
the meaning of the Securities Act), against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
reasonable legal fees and expenses) ("Indemnifiable Costs and Expenses")
resulting from (x) any untrue statement (or alleged untrue statement) of a
material fact in, or any omission (or alleged omission) of a material fact
required to be stated in, any Registration Statement or Prospectus or necessary
to make the statements therein (including any such statements or omissions
incorporated by reference therein) (in the case of a Prospectus, in light of the
circumstances under which they were made) not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such Selling Stockholder or any underwriters expressly for use
therein, or (y) any violation or alleged violation by the Company of the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), any state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law in connection with
the offering covered by such Registration Statement. The Company will also
indemnify underwriters participating in the distribution, their officers,
directors, employees, partners and agents, and each Person who controls such
underwriters (within the meaning of the Securities Act), to the same extent as
provided above with respect to the indemnification of the Selling
Stockholder(s), if so requested.
(b) Indemnification by the Selling Stockholder(s). In connection
with any Registration Statement, each Selling Stockholder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and agrees to indemnify and hold harmless, to the full extent
permitted by law, but without duplication, the Company, its officers, directors,
stockholders, employees, advisors and agents, and each Person who controls the
Company (within the meaning of the Securities Act), against all Indemnifiable
Costs and Expenses resulting from (x) any untrue statement (or alleged untrue
statement) of a material fact in, or any omission (or alleged omission) of a
material fact required to be stated in, the Registration Statement or Prospectus
or necessary to make the statements therein (in the case of a Prospectus in
light of the circumstances under which they were made) not misleading to the
extent that such untrue statement or omission is caused by or contained in any
information or affidavit so furnished in writing by such Selling Stockholder to
the Company, or (y) any violation or alleged violation by such Selling
Stockholder of the Securities Act, the Exchange Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law in connection with the offering covered by such
Registration Statement. No Selling Stockholder shall be required to provide
indemnification or contribution hereunder in excess of an amount equal to the
net proceeds to such Stockholder from the disposition of the Registrable
Securities disposed of by such Stockholder pursuant to such Registration
Statement.
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(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel of such
indemnifying party's choice; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in (but not control) the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such indemnified Person
unless the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to the indemnified party in a
timely manner. The indemnifying party will not be subject to any liability for
any settlement made without the indemnified party's consent. No indemnified
party will be required to consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of the claim will not be
obligated to pay the fees and expenses of more than one counsel (except one (1)
local counsel if required in a specific instance) for all parties indemnified by
such indemnifying party with respect to such claim.
(d) Contribution. If for any reason the indemnification provided for
in Section 8(a) or Section 8(b) hereof is unavailable to an indemnified party or
is insufficient to hold it harmless as contemplated by Section 8(a) and Section
8(b) hereof, respectively, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim,
damage, liability or expense in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnifying party and the
indemnified party, but also the relative fault of the indemnifying party and the
indemnified party, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement or the omission or alleged omission
relates to information supplied by the indemnifying party or parties on the one
hand, or the indemnified party or parties on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentations.
(e) Conflict with Underwriting Agreement. Notwithstanding the
foregoing, to the extent that the indemnification and contribution provisions
contained in any underwriting agreement entered into in connection with any
Underwritten Offering conflict with the foregoing, the provisions of such
underwriting agreement shall control.
Section 9. Participation in Underwritten Registrations. No
Stockholder may participate in any Underwritten Offering hereunder unless it (i)
agrees to sell the Registrable Securities included therein on the basis provided
in any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, custodial arrangements
and other documents required under the terms of such underwriting arrangements.
Nothing in this Section 9 shall be construed to create any additional rights
regarding the registration of Registrable Securities in any Person otherwise
than as set forth herein.
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Section 10. Certain Covenants by the Company.
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(a) The Company agrees to use its commercially reasonable efforts to
file with the SEC on a timely basis all annual, quarterly and current reports
required to be filed by the Company under the Exchange Act.
(b) Upon request by any Stockholder, the Company will inform such
Stockholder whether it is in compliance with its reporting obligations under the
Exchange Act.
(c) Upon obtaining an opinion in form and substance satisfactory to
the Company from counsel to a Stockholder that is reasonably satisfactory in
form and substance to the Company to the effect that such Stockholder may
transfer its Registrable Securities without registration under the Securities
Act, the Company will instruct its transfer agent to issue to such Stockholder a
certificate representing such Registrable Securities without any legend affixed
thereto.
Section 11. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this Section 11, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless such amendment, modification, waiver
or consent is in writing and duly executed by the Company and a majority in
interest of the Stockholders. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision of this Agreement and no waiver on
one occasion shall constitute a waiver on any future occasion with respect to
the same or any other provision of this Agreement.
Section 12. Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or air-courier guaranteeing overnight delivery:
(a) If to a Stockholder, at the most current address given by
such Stockholder to the Company, in accordance with the provisions of this
Section 12, which address (including facsimile number) initially is set
forth opposite the Stockholders' names on Schedule A annexed hereto.
(b) If to the Company, initially at 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, attention: Xxxxxx X. Xxxxxx, Chief Financial Officer,
facsimile No.: (000) 000-0000, and thereafter at such other address as may
be designated from time to time by notice given in accordance with the
provisions of this Section 12, with copies to Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxx
X. Xxxxxxxx, Esq., facsimile No.: (000) 000-0000.
(c) All such notices and other communications shall be deemed
to have been delivered and received (i) in the case of personal delivery,
facsimile, telecopier or telegram, on the date of such delivery, (ii) in
the case of air courier, on the Business Day after the date when sent and
(iii) in the case of mailing, on the third (3rd) Business Day following
such mailing.
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Section 13. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart by facsimile shall constitute delivery of an original.
Section 14. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF.
Section 16. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
Section 17. Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise expressly provided in
Section 8 hereof, this Agreement shall not confer any rights or remedies upon
any Person other than the parties hereto and their respective successors and
permitted assigns. A Stockholder may assign its rights under this Agreement to
any "accredited investor" (as defined in Rule 501 under the Securities Act) to
whom it transfers shares of Series D Preferred Stock, Warrants or Registrable
Securities, provided that such Stockholder provides an opinion of counsel, in
form and substance reasonably satisfactory to the Company, that such transfer is
not required to be registered under the Securities Act or any applicable state
securities laws. Upon any such assignment, the assignee shall be deemed to have
agreed to, and shall, be bound by all of the terms and provisions of this
Agreement as if such assignee had executed and delivered this Agreement on the
date hereof.
Section 18. Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Stockholders have executed this
Registration Rights Agreement as of the date first written above.
INTERNET COMMERCE CORPORATION
By:
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Name: G. Xxxxxxx Xxxxxxx
Title: President and Chief Executive Officer
Stockholders:
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